[2016] UKPC 24
Privy Council Appeal
No 0022 of 2015
JUDGMENT
Oliveira (Appellant) v The Attorney General
(Respondent) (Antigua and Barbuda)
From the Court of Appeal
of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Sir Bernard Rix
JUDGMENT GIVEN ON
2 August 2016
Heard on 9 February 2016
|
Appellant
David Dorsett PhD
Owen Roach
(Instructed by M A
Law (Solicitors) LLP)
|
|
Respondent
Carla
Brookes-Harris
Rose-Anne Kim
(Instructed by
Charles Russell Speechlys LLP)
|
SIR BERNARD RIX:
1.
In April 2009 the appellant, Clive Oliveira, a native of Guyana, filed
his application to be registered as a citizen of Antigua and Barbuda, on the
basis of his wife’s citizenship of Antigua and Barbuda and his subsisting
marriage to her for more than three years, as he was entitled pursuant to
section 114(1)(b) of the Antigua and Barbuda Constitution Order 1981 to do.
2.
On 18 July 2011, nearly 27 months after his application for
registration, Mr Oliveira was so registered.
3.
Section 114(1)(b) provides as follows:
“(1) Subject to the provisions
of paragraph (e) of section 112 and section 117 of this Constitution, the
following persons shall be entitled, upon making application, to be registered
on or after 1 November 1981 -
(a) …
(b) any person who -
(i) was married to a
person who is or becomes a citizen …
Provided that no application shall
be allowed from such person before the marriage has subsisted for upwards of
three years and that such person is not, or was not at the time of the death of
the spouse, living apart from the spouse under a decree of a competent court or
a deed of separation …”
4.
Mr Oliveira’s wife had also been a Guyanese citizen when, on 30
September 2002, she had been registered as a citizen of Antigua and Barbuda on
the basis that she had been domiciled there and for a period of not less than
seven years preceding her application for registration had been lawfully
ordinarily resident there, pursuant to article 114(1)(c)(ii) of the
Constitution Order.
5.
In this appeal, Mr Oliveira complains that the time taken to register
him as a citizen of Antigua and Barbuda was unnecessarily and unreasonably
long. He claims that this was a breach of his constitutional rights pursuant to
the Constitution Order, as well as being a matter for judicial review, and that
he is entitled to damages as a consequence. He submits that his damages should
include damages for his inability to work in the interim between application
and registration.
6.
The respondent, the Attorney General for Antigua and Barbuda, resists
this appeal, on the ground that there is no basis for departing from the
findings in the courts below that Mr Oliveira’s application was handled
rationally and within a reasonable time and thus lawfully. The essential issue
is whether Mr Oliveira’s complaint or the Attorney General’s response is
correct.
7.
At first instance, by his judgment dated 12 October 2010 Justice David
Harris rejected Mr Oliveira’s claim. He held that although the circumstances of
the case “come perilously close to being a fetter on the claimant’s rights” (at
para 61), ultimately there was “insufficient evidence to support the claimant’s
contention that the period between the application for registration and the
interview is unnecessarily long and unreasonable …” (para 66). On appeal, the
Court of Appeal by their judgment dated 10 March 2014 upheld that judgment.
They said that a “delay of nineteen months between application and possible
registration … may not, in the circumstances, be inordinate, even if it came -
in the language of the trial judge - ‘perilously close to being a fetter on the
[appellant’s] rights’” (at para 27).
The facts
8.
Mr Oliveira’s attempts to be registered as a citizen of Antigua and
Barbuda has had a rich history.
9.
Mr Oliveira and his wife were married in Guyana on 21 October 1991 in
the Hindu East Indian tradition. First he, and later she, migrated from Guyana
to Antigua in 1993: he in May and she in December of that year. Except for
brief absences he has resided in Antigua from that time. Whilst residing in
Antigua, Mr Oliveira had been self-employed and had in the past obtained a work
permit to work as a self-employed person. On 23 October 1997 Mr Oliveira and
his wife were married in Antigua in accordance with the laws of Antigua and
Barbuda.
10.
On 30 September 2002 Mr Oliveira’s wife was registered as a citizen of
Antigua and Barbuda, on the basis that she was a Commonwealth citizen domiciled
in Antigua and Barbuda and lawfully and ordinarily resident there for no less
than seven years immediately preceding her application for registration as a
citizen.
11.
In the same year Mr Oliveira was convicted of the rape of a 14-year old
girl, but his conviction was quashed on appeal. He was retried and convicted
again, and his conviction was again quashed on appeal. In February 2007 the
Director of Public Prosecutions entered a nolle prosequi. Mr Oliveira
was then released from prison and deported in March 2007, but returned to
Antigua in August 2007 and was given leave to remain for one month. He sought
an extension of that leave, which was denied. The police retained his Guyanese
passport. On 4 September 2007, Cabinet declared him a prohibited immigrant and
issued instructions for his deportation, but he continued to live in Antigua.
12.
It was at that point that he first filed a claim, on 23 July 2008, inter
alia for a declaration that he was entitled to be registered as a citizen of
Antigua and Barbuda by virtue of his marriage to his wife. He also disputed the
deportation order and the impounding of his passport.
13.
Judgment in that claim was given in the High Court by Blenman J on 26
May 2009. On the matter of deportation, the judge found that she could “place
very little weight, if any, on the statement of the Immigration Officer in
relation to the issue of national security” and found that the Cabinet decision
to deport him was irrational (para 75). She also found that the passport had
been unlawfully impounded. On the question of his entitlement to be registered
as a citizen on the ground of his marriage, the court declared that he was
entitled to apply for registration, although at that time he had not done so,
since in fear of deportation and later in the absence of his passport he had
not been able to do so. The judge said (at para 83 of that judgment):
“Accordingly, I do not share the
view that the court is barred from making any declaration in relation to his
entitlement in so far as he has not applied to be registered as a citizen of
Antigua and Barbuda. There is no doubt in my mind that on the facts presented,
read together with the law, there is nothing to prevent the court from
declaring that he is entitled to apply to be registered as a citizen of Antigua
and Barbuda. I so hold.”
14.
The judge had previously recorded the submission on Mr Oliveira’s behalf
that the facts of his subsisting marriage “which are not subject to argument”
entitled Mr Oliveira upon application to registration as a citizen (at para 31).
It appears that the judge acknowledged those facts, which are not in dispute in
the current litigation either.
15.
On 2 April 2009, even before that judgment was handed down, Mr
Oliveira’s passport was returned to him, and, as the agreed statement of facts
on this appeal narrates, he “immediately” made use of its recovery to make his
application for registration as a citizen pursuant to section 114(1)(b). That
application was made in due form at the Passport Office. He received a receipt,
dated simply “2009”, for his completed application and for the papers which
that application called for such as his passport, birth certificate and
marriage certificate, and was directed to call on the Immigration Department on
1 May 2009. That date was written on the receipt: “Please … go to Immigration
Dept 1-5-09”. The witness statement of Ms Brenda Cornelius, Permanent Secretary
of the Passport Office, confirms that Mr Oliveira’s application was made “in or
around April 2009”.
16.
It is to be assumed that on 1 May 2009 Mr Oliveira presented himself at
the Immigration Department, which directed him to return to its Citizenship
Division for an appointment on 11 November 2010, namely some 18 and half months
later. He was also handed a form which instructed him to bring with him to that
appointment 13 different types of documents, and, if his application for
citizenship was by reason of marriage, as it was, in addition another four
types of documents, namely his wife’s passport, her birth certificate, her
citizenship certificate, and their marriage certificate. Many, and perhaps all,
of the first 13 categories of documents were of dubious relevance to a section
114(1)(b) application. As the judge at first instance stated (at para 27):
“Ms Simon on behalf of the defendant
acknowledged that at least 15 items listed to be reviewed and investigated have
no bearing on informing the state on the pertinent issue of the claimant’s
marriage status or the length of his marriage.”
17.
The judge went on to find (at para 59):
“several of the issues that the
Immigration Department required to be resolved as part of the application and
registration process appeared on the face of it to be irrelevant. It was open
to the defendant to show the court the relevance of those considerations that
it has imposed upon itself. It has in my view failed to do so.”
18.
There is some dispute as to whether Mr Oliveira called at the Immigration
Department, as he had been directed, on 1 May 2009 or, as subsequently the
witness statement dated 12 February 2010 of Ms Juliet Simon, the Supervisor of
Temporary Residence at the Immigration Department, was to say: “In or around
late of May or early June of 2009”. There is no support for that timing,
however. When cross-examined in these proceedings, Mr Oliveira was not
challenged on the basis that he had failed to keep his appointment of 1 May
2009. In the cross-examination of Ms Simon, she agreed that Mr Oliveira had
come into her department in May 2009. The judge made no specific finding. The
Court of Appeal seems to have assumed that the appointment of 1 May 2009 was
kept (at para 1). The agreed Statement of Facts does likewise (“The appellant …
was directed to ‘go to’ the Immigration Department on 1 May 2009 which then
directed him to return to the Citizenship Division on 11 November 2010 …”.
There seems to be no reason not to accept that Mr Oliveira did what he had been
asked to do.
19.
The lengthy delay between 1 May 2009 and the interview appointment of 11
November 2010 is the most critical factor in the history of events. Naturally
enough, the interview was not the end of the process, and ultimately Mr
Oliveira’s registration as a citizen was not accomplished until 18 July 2011, a
further eight months, making a total of some 27 months (April 2009 to July 2011)
for the process as a whole. On behalf of Mr Oliveira, it is submitted that from
start to finish the process should not have taken more than one month. On
behalf of the Attorney General, it is submitted that these historic time scales
were reasonable and rational.
20.
Mr Oliveira did not, however, wait out the 19-month period for his
appointment, but on 17 November 2009 filed the present litigation, seeking
relief under the Constitution Order and/or by way of judicial review in respect
of the on-going failure to register him as a citizen.
21.
In the meantime he had applied for temporary residence, with the aim of
obtaining work. In early July 2009 he attended at the Immigration Department
with a letter dated 1 July 2009 which his solicitors addressed to the Chief Immigration
Officer at the Immigration Department. The letter referred to his application
for citizenship and applied for temporary residence “whilst he awaits the
completion of his citizenship application. The granting of temporary residence
will regularise his continued stay in the country.” The letter was signed by Dr
Dorsett, his counsel. On 16 July 2009 a further letter from Dr Dorsett to the
Chief Immigration Officer referred to Mr Oliveira’s visit and enclosed the
letter of 1 July 2009. On 31 August 2009 a third letter from Dr Dorsett was
addressed to the Chief Immigration Officer, referring to the two previous
letters and stating that they had received no reply. By letter dated 10
November 2009, however, from solicitors acting for the Immigration Department
and the Chief Immigration Officer, and headed “Temporary Residence Application
for Clyde Olivera [sic]”, it was stated that the “above referenced matter has
been referred to us for response”. The letter went on to state that the Cabinet
of Antigua and Barbuda ordered an investigation into the Temporary Residence
Unit of the Department in April 2008 and that the Cabinet had “temporarily
postponed the issuance of Temporary Residence Certificates pending a report from
The Investigation Committee”.
22.
Ms Simon, however, in her witness statement said that there were no
records at the Immigration Department relating to an application from Clive
Oliveira for temporary residency. Given the response from the Department’s own
solicitors, that cannot be correct. Ms Simon, the Supervisor of Temporary
Residency at the Immigration Department, gave no evidence about the suspension
of the issue of Temporary Residence Certificates, in effect the suspension of
the work of the Temporary Residence Unit, even though she said in her affidavit
dated 29 October 2009 and her witness statement dated 12 February 2010 that she
had been appointed to that position in May 2008, ie a month after the letter
cited above had said in effect that the work of the temporary residence unit had
been suspended.
23.
The judge accepted the letters from Mr Oliveira’s counsel and Mr
Oliveira’s own evidence about them in preference to the suggestion in Ms
Simon’s evidence that Mr Oliveira’s application for a temporary residence
permit was unknown to the Immigration Department. He said (at para 64):
“it appears … that the claimant’s
interim application for a work permit ought to have been given priority
consideration on the basis of his prima facie satisfaction of the requirements
for Citizenship. This aspect of the case remains a sore point with the court.”
24.
The Court of Appeal, however, was dismissive of this concern, saying in
a postscript (at para 31):
“but there was no evidence,
however, of the appellant ever having applied for and been refused a work permit
- interim or otherwise.”
In that, however, the Court of Appeal appears
unfortunately to have been mistaken. The point about the application for
temporary residence is that it would have permitted Mr Oliveira to work.
25.
There was evidence at trial as to the circumstances in which Mr Oliveira
had been delayed in his application until his appointment at the Immigration
Department on 11 November 2010. Ms Simon, who, apart from being Supervisor of
the Temporary Residency Unit at the Immigration Department was one of the
immigration officers responsible for citizenship interviews, and Ms Cornelius,
the Permanent Secretary of the Passport Office, gave evidence as to how those
two departments processed citizenship applications.
26.
Ms Cornelius explained that it was customary for all male applicants for
citizenship to be asked by the Passport Office (where the application is made)
to attend for interview at the Immigration Department. The purpose of the
interview is not only to verify that the application for citizenship is
legitimately made and is not the subject of fraud or forgery, but also, as the
documents which Mr Oliveira was asked to bring to his interview demonstrated,
to enable the Immigration Department to check on the applicant’s criminal
record and his immigration, work and tax status. Women apparently do not have
to be interviewed. However, the applicant’s marriage status is determined at
the Passport Office, where no interview is conducted, but where the relevant
documents are checked. Ms Cornelius said the following in her witness statement
about the length of the process (at paras 10-11):
“There is no specified or guaranteed
time limit in which an application must be processed. The overall approval
process can last several months. It is quite common for many applicants to be
interviewed and approved for citizenship within an average period of 12 to 18
months from their original application date and this is due to the large number
of new applicants seeking Antigua and Barbuda citizenship. There have been numerous
applicants for citizenship who have waited several months for their citizenship
interviews.”
27.
Ms Cornelius illustrated that evidence by attaching to her witness
statement the “Citizenship Check Sheet” from the Immigration Department of two
other applicants: one of them received a receipt from the Passport Office of
his application dated 15 May 2008 and was interviewed at the Immigration
Department on 15 April 2009 (a period of 11 months); the other’s Passport
Office receipt was dated 18 June 2008 and his interview took place on 3 June
2009 (a period of between 11 and 12 months). There was no similar evidence of
longer delays.
28.
Ms Simon, who had hands-on experience of Immigration Department
interviews, simply said that Mr Oliveira had been given the earliest possible
date for his interview: no earlier date could have been given to him. She was
cross-examined about that at trial. She said that she did not have “the book”
in front of her, but it was “quite a lot of persons”, giving a ballpark figure
of “about 200”. She then clarified that interviews took place three days a
week, at the rate of three per day. She agreed that that would amount to some
40 interviews per month, and that the 200 persons she had spoken of would be
interviewed within about five months. The backlog was made up of both
citizenship applications and other immigration related applications, a matter
remarked on by the Court of Appeal (at para 21).
29.
Ultimately, Mr Oliveira attended for interview at the Immigration
Department, presumably on the appointed date of 11 November 2010, and after a
further period of another eight months, about which the Board knows nothing, he
was registered as a citizen on 18 July 2011.
30.
Mention should also be made of a somewhat different process for the
handling of citizenship applications under the comparatively recent Antigua and
Barbuda Citizenship by Investment Act 2013. This provided a procedure for the
obtaining of citizenship by investors in Antigua and Barbuda. That procedure
was handled by a special unit (the Citizenship by Investment Unit) (Schedule,
regulation 3(1)). The process has to be concluded within three months with the
applicant being notified within that period that his application had either
been approved, or denied, or “delayed for cause” (regulation 5(14)).
The judgments below
31.
The hearing of Mr Oliveira’s claim took place before Harris J in June
2010, and judgment was delivered on 12 October 2010, about one month before his
appointment at the Immigration Department.
32.
The Board has described the facts and evidence above. In his judgment,
Harris J came to the conclusion, highlighted above, that the delay of 19 months
until the interview, at that time still in the future, although “perilously
close” to the line of unreasonableness, was not over it. He opined that the
“well over one-year period from application to interview is not out of the
realm of international experience” (para 62). He accepted Ms Simon’s attempt to
estimate the amount of applications, but he also accepted her evidence that Mr Oliveira
had simply joined the queue, and could not expect to jump it. He said (at para
63):
“In the circumstances, even though
instinctively the subject period seems long, I cannot hold that the length of
time of the process is unreasonable and amounts to breach of the constitutional
right to Citizenship of the claimant.”
33.
When Mr Oliveira appealed on 24 November 2010, it was within two weeks
of his interview. Eight months later, on 18 July 2011, he was registered as a
citizen. The hearing in the Court of Appeal took place in November 2013, and
judgment was given on 10 March 2014.
34.
Although there were originally seven grounds of appeal, of which two
were abandoned on the basis that they were contained within the other five, the
essential point remained, as it had been below, whether the delay of 19 months
until interview, let alone registration, was unreasonably long. The Court of
Appeal described this as the “central issue” (at para 7). In this respect, the
court upheld the reasoning and critical finding of the trial judge. It took
into account the three-month period laid down by the 2013 Act, but concluded
that the delay otherwise engendered by a “significant backlog” (Ms Simon’s 200
cases) which had to be processed by only two employees was not inordinate. A
significant part of the court’s reasoning was that the judge had been
exercising a “discretion” (para 19) and that, on classical principles, there
was no good basis on which to go behind that discretion, or to reject his
finding that Mr Oliveira had been given the earliest possible date for
interview.
Submissions
35.
On behalf of Mr Oliveira, Dr Dorsett submitted that the delay of 19
months until interview, a fortiori of 27 months until registration, was
unreasonably long, a fetter on his right to be registered and a breach of his
constitutional rights. The matter went beyond the rationality or otherwise of
administrative action, or the exercise of a mere discretion by the court in a
judicial review, and amounted to an ultra vires abuse of power. This was all the
more so against the background of Mr Oliveira’s success in his previous claim,
where his right to apply for registration on the basis of his subsisting
marriage to his wife was recognised, and in the light of the unfairness of his
position where, in the absence of temporary residence giving him the right to
work, he was unable to look after his family. Mr Oliveira was entitled to
registration “upon making application” (section 114(1)), and that meant
immediately, or at least promptly, with an outside limit of one month. He
relied on Gowa v Attorney General [1985] 1 WLR 1003 (HL) with respect to
“upon making application”; on R v Secretary of State for the Home
Department, Ex p Phansopkar [1976] QB 606 (CA) at 622 for the proposition
that if necessary a separate queue should be created for those with simple
straightforward cases; and on Engineers’ and Managers’ Association v
Advisory, Conciliation and Arbitration Service [1980] 1 WLR 302 (HL) for
the submission that account should where appropriate be taken of up to date
circumstances, such as the ultimate 27 months’ delay.
36.
On behalf of the Attorney General, Ms Carla Brookes-Harris submitted
that the judgment below should be upheld for the reasons there set out for
dismissing Mr Oliveira’s grounds of appeal to the Court of Appeal. In essence,
the trial judge had said that it had not been proved that the delay of 19
months until interview was too long, or that delay had been caused by
admittedly irrelevant matters. It had been recognised that Mr Oliveira was relying
on constitutional rights as well as judicial review. As for registration “upon
making application”, that did not mean instantly but “within a reasonable time”
and the time taken was not so irrational as to be unreasonable. On the
contrary, a process had to be gone through, and Mr Oliveira was not entitled to
jump the queue. As for the application for temporary residence, Mr Oliveira was
an illegal entrant and was properly denied the ability to work pending his
application for citizenship.
Discussion and decision
37.
The central and essential question is whether a period of 19 months
until interview alone is within a reasonable time. That question has to be
considered in the light of all the circumstances, making full allowance for the
feel and knowledge of the local courts.
38.
It is recognised that a good argument can be made for letting the matter
rest on that local knowledge, on the finding that Mr Oliveira cannot complain
of merely being required to join the queue, and on the conclusion that however
close these facts are to an illegitimate line, they had not crossed it.
39.
The Board is satisfied that Mr Oliveira’s submission that registration
should typically and as a matter of the interpretation of the Constitution
Order be immediate or almost immediate, viz within one month, is not correct.
The case of Gowa does not assist that submission. There the only
question was whether an application for registration of a minor, made under the
British Nationality Act 1948, and which had remained undetermined into the era
of the British Nationality Act 1981, should be regarded as still having to be
determined under the 1948 Act. The Board notes, however, their Lordships’
understanding that the declaration there given, that the proper authority
should forthwith consider and determine the applications, “would be acted on
swiftly” (at p 1011A).
40.
Of more relevance is a case such as R (Saadi) v Secretary of State
for the Home Department [2002] UKHL 41; [2002] 1 WLR 3131, where the House
of Lords held that the question of an asylum applicant’s immediate detention
had to be resolved within a reasonable time (there established). Although the
contexts of liberty and citizenship are different, and the timescales involved
are different, nevertheless in the Board’s judgment the Attorney General, and
the courts below, were right to acknowledge that the same test, of a
determination, here of the right of citizenship, within a reasonable time is
the relevant test.
41.
In this context, it is accepted that there needs to be a process for the
consideration of applications under section 114 of the Constitution Order and
that the granting of the application cannot simply be automatic. It is unclear
to the Board, however, that the full gamut of the inquiries undertaken by the
Immigration Department was necessary. The Attorney General has accepted that at
least 15 items listed to be reviewed and investigated had no bearing on informing
the state on the pertinent issue of Mr Oliveira’s marriage status or the length
of his marriage, for the purposes of section 114(1)(b). The judge himself
commented that at least several of the issues which formed part of the process
appeared to be irrelevant.
42.
Making every allowance, as in the Board’s view it should, for the
customary ways of doing things in Antigua, and for the lumping together of
relatively straightforward applications such as those under section 114 with
other immigration applications of a different nature, we nevertheless conclude
that a period of one year, from application to registration, for the
consideration of a section 114 application is in general the outside limit of a
reasonable time, and that delay beyond that time, absent special
considerations, is likely to be unlawful because a fetter on the legitimate
applicant’s right to be registered. We also conclude that there were special
considerations in the case of Mr Oliveira which make the limit of one year more
than generally pertinent.
43.
The Board has come to this conclusion in the light of the following
factors. The only, but also regarded as the critical, evidence in support of
the decisions below was the evidence of Ms Simon that Mr Oliveira had been
given the earliest available appointment, albeit 19 months down the line and
still longer counting from the original application. However, not only was a
period of that length of time unjustifiable in itself on any reasonable basis,
rendering it almost inevitable that the complete period from application down
to registration would be materially longer still, but that evidence was of too
general and superficial a quality to merit the weight that was placed on it. It
was not supported by any documentary evidence as to the relevant appointment
book. Ms Simon referred to such a “book” in her cross-examination, but she did
not have it to hand. Ms Cornelius spoke of applicants for citizenship having to
wait “several months” for their appointment. She put forward two examples from
2008-2009 (not from 2009-2010), as presumably the best examples she could find
from the point of view of the Attorney General’s case, but they showed only
periods of 11 months’ and between 11 and 12 months’ delay between application
and interview. Ms Cornelius also spoke of an “average period of 12 to 18
months” for the whole process from application to approval. In the present case
all these periods were greatly exceeded. Moreover, when Ms Simon, who had the
responsibility of conducting the Immigration Department interviews herself, was
cross-examined as to the detail of the backlog, she could not support a backlog
of longer than five months. In the circumstances, the blithe assurance that Mr
Oliveira had been given the earliest possible interview date should not have
been accepted in the context of his claim to a constitutional right. Moreover,
in Phansopkar at p 622E-F Lord Denning MR observed that in
straightforward cases (there of certificates of patriality), a separate queue
could be formed “because they are entitled as of right and not by leave”. That
observation appears to be appropriate here.
44.
In this context, contrast can also be made with the three months period
which had to suffice, in the absence of special circumstances, for the
resolution of a merely discretionary right to citizenship of a suitable
investor, under the 2013 Act, albeit at the hands of a special unit formed for
that purpose; and to the fact that, making all allowances for any pressure on
resources which the staffing of the Immigration Department might have been
suffering in 2009/2010, the Board reminds itself that absence of resources is
not in general an excuse for maladministration.
45.
Apart from these considerations, moreover, there were special factors in
the case of Mr Oliveira which support a reasonable time limit of 12 months.
First, his case had already come before the court in 2009, and the court had
then recognised his right to apply for citizenship on the ground of his marriage.
Secondly, his position pending registration was not a happy one in
circumstances where he could not work without temporary residence. Whatever be
the facts concerning the availability of temporary residence at that time, it
is clear that he had made his application for temporary residence, and had
explained his difficulties in the absence of temporary residence, to the
Immigration Department in July and August 2009.
46.
The Attorney General relied on the submission that Mr Oliveira’s
presence in Antigua as an overstayer was deleterious to his application. It did
not turn out to be. Indeed, it was common ground that his section 114
application could have been made out of country.
47.
In these circumstances, the Board concludes that the delay up to
November 2010, which the trial court had to consider, was itself a breach of Mr
Oliveira’s constitutional rights, let alone any further inevitable delay
post-interview. There was some dispute before the Board as to whether the
ultimate delay of 27 months could be taken into account, or had been before the
Court of Appeal as in issue. In the Board’s view this does not matter, but also
it could properly be taken into account. At the time of the trial before Harris
J, the ultimate period for registration lay in the future. At the time of the
appeal, the Court of Appeal must have known of the date of registration, and
the Board has been told that the Attorney General drew the court’s attention to
it and that Dr Dorsett had submitted that the court could take account of it.
It has been relied on in the notice of appeal to the Board. The Board accepts
that in such matters it can be appropriate to take account of the up to date
position: see the Engineers’ and Managers’ Association case at pp 306G-H,
310F-G, 320F. But the Board’s conclusion rests on the fact that by the time of
trial the delay occurring pending the forthcoming interview was already
unreasonable.
48.
For these reasons the Board will humbly advise Her Majesty that the
appeal will be allowed with costs before the Board and in the courts below and
that a declaration should be made declaring that Mr Oliveira’s application for
registration should have been concluded within 12 months from being made. Since
the precise date of his application is unknown, the Board will name 15 April
2009 as the latest date of his application. Mr Oliveira’s claim should be
remitted to the trial court in Antigua for it to assess the damages.
